Clear as Mud: Legislating the Definition of Occurrence in a CGL Policy

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1 Clear as Mud: Legislating the Definition of Occurrence in a CGL Policy Seth M. Friedman 1 Weissman, Nowack, Curry & Wilco, P.C. Atlanta, GA One of the biggest issues affecting coverage litigation for construction defects is whether such claims constitute an occurrence under a commercial general liability ( CGL ) policy. While the Courts remain split, some states have resorted to enacting statutes to define occurrence in CGL policies. Specifically, in reaction to courts finding that faulty workmanship is not an occurrence, Colorado, Hawaii, Arkansas and South Carolina have all recently passed statutes aimed at overturning those decisions. Colorado In 2009, the Colorado Court of Appeals held in the General Security case that a claim of defective workmanship alone does not allege an occurrence under a commercial general liability policy, and therefore an insurer had no duty to defend such a claim. 2 In direct response to the General Security decision, the Colorado General Assembly in 2010 passed 1 Seth M. Friedman is an associate at the law firm of Weissman, Nowack, Curry and Wilco, P.C., located at 3500 Lenox Road, Atlanta, GA Gen. Sec. Indem. Co. of Arizona v. Mountain States Mut. Cas. Co., 205 P.3d 529, 531 (Colo. Ct. App. 2009). 1

2 C.R.S.A which applies only to interpretation of insurance policies issued to construction professionals. The term construction professionals is defined as an architect, contractor, subcontractor, developer, builder, builder vendor, engineer, or inspector performing or furnishing the design, supervision, inspection, construction, or observation of the construction of any improvement to real property. 3 C.R.S.A provides in relevant part that: (3) In interpreting a liability insurance policy issued to a construction professional, a court shall presume that the work of a construction professional that results in property damage, including damage to the work itself or other work, is an accident unless the property damage is intended and expected by the insured. Nothing in this subsection (3): (a) Requires coverage for damage to an insured's own work unless otherwise provided in the insurance policy; or (b) Creates insurance coverage that is not included in the insurance policy. The purpose of C.R.S.A was to overturn General Security decision, and now makes it much more likely that insurers will provide a defense against claims defective workmanship. 4 Notably though, the statute does not require coverage for damage to an insured s own work unless otherwise provided by the policy. Further, the statute also directs courts on what information may be considered when the court finds an ambiguity in a policy issued to a construction professional, including considering a construction professional s objective, reasonable expectations in the interpretation of an insurance policy issued to a construction professional. 5 In attempting to ascertain those reasonable expectations the statute allows courts to consider any non-privileged writing regarding the particular insurance policy provision relied on by the insurer. 6 After the passage of C.R.S.A , one issue that was raised is whether the statute applied prospectively or retrospectively. In predicting Colorado law, the 10 th Circuit held that C.R.S.A applied prospectively beginning with policies whose policy period had not yet expired as of the date 3 C.R.S.A Section (1)(a)(III) of the statute specifically criticizes the General Security decision. 5 C.R.S.A (4) 6 C.R.S.A (4)(c) 2

3 the statute was enacted. 7 Thus, despite the fact that a policy may have been issued before the enactment of C.R.S.A , if its policy period had not expired when the statute became effective, the rights of the parties were substantively changed during the policy period. This ruling raises potential constitutional issues which are examined in a paper by Laura Foggan entitled Constitutional Challenges to Construction Defect Coverage Statutes. 8 However, what the statue does not address, is any of the exclusions contained in an insurance policy. Thus, while insurer s duty to defend claims of defective workmanship is more likely to be triggered under this statute, any exclusion that would ultimately bar indemnity coverage for such a claim is not affected. Hawaii In 2010, the Hawaii Intermediate Court of Appeals in the Group Builders case held that claims of faulty workmanship, standing alone, were not sufficient to allege an occurrence under a commercial general liability policy, and therefore insurers had no duty to defend such claims. 9 In direct response to Group Builders, the Hawaii Legislature enacted H.R.S. 431:1-217 which applies only to interpretation of insurance policies issued to a construction professional. A construction professional is defined as a person, sole proprietorship, partnership, corporation, limited liability corporation, or other entity that engages in an activity intended to assist in the development, construction, or repair of an improvement to real property. 10 H.R.S. 431:1-217 provides in relevant part that: (a) For purposes of a liability insurance policy that covers occurrences of damage or injury during the policy period and that insures a construction professional for liability arising from construction-related work, the meaning of the term occurrence shall be construed in accordance with the law as it existed at the time that the insurance policy was issued. *** (c) Any provision of an insurance policy issued in violation of this section shall be void and unenforceable as against public policy. 7 Greystone Const., Inc. v. Nat'l Fire & Marine Ins. Co., -- F.3d --, 2011 WL (10th Cir. Nov. 1, 2011) 8 All of the statues discussed in this paper have the possibility of similar constitutional challenges, which are addressed in Ms. Foggan s paper. 9 Group Builders, Inc. v. Admiral Ins. Co., 231 P.3d 67 (Haw. Ct. App. 2010). 10 H.R.S. 431:

4 (d) This section shall apply to all liability insurance policies issued and in effect as of the effective date of this Act. The statute does not define what the law is as of the passage of this statute or what it was at any time in the past. However, while not codified in the statute, the preamble to the statute specifically disapproves of the Group Builders decision and states: The legislature further finds that the 2010 decision of the Hawaii Intermediate Court of Appeals in Group Builders, Inc. v. Admiral Ins. Co., 231 P.3d 67 (Haw. Ct. App. 2010) invalidates insurance coverage that was understood to exist and that was already paid for by construction professionals. Prior to the Group Builders decision construction professionals entered into and paid for insurance contracts under the reasonable, goodfaith understanding that bodily injury and property damage resulting from construction defects would be covered under the insurance policy. It was on that premise that general liability insurance was purchased. 11 This language has lead some to speculate that the intent of the Hawaii Legislature was to allow insurers to deny insurance coverage in accordance with Group Builders for all policies issued after the Group Builders decision, but to require the courts to apply an interpretation more favorable to coverage for policies issued prior to that time. 12 In contrast, at least one insurer has already attempted to argue that Group Builders did not change the law in Hawaii, however the Court found that position incompatible with the Legislature s concern about Group Builders. 13 Due to the Hawaii Legislature s approach in drafting H.R.S. 431:1-217, how this statute is applied will likely be left to the courts of Hawaii. ARKANSAS In 2007 the Arkansas Supreme Court held in the Essex case that faulty workmanship does not constitute an occurrence under a CGL policy. 14 Further, in 2011, the Eighth Circuit held in the Lexicon case that Essex only applied when there was damage to the work itself, and that faulty workmanship which 11 See Hawaii H.B Clifford J. Shapiro and Kenneth M. Gorenberg, The New Wave of Insurance For Construction Defects?, Law 360, 13 Nat'l Union Fire Ins. Co. of Pittsburgh, PA v. Simpson Mfg. Co., CIV ACK, 2011 WL , Fn. 13 (D. Haw. Nov. 7, 2011) 14 Essex Ins. Co. v. Holder, 370 Ark. 465, 540, 261 S.W.3d 456 (2007). 4

5 damages other work does constitute an occurrence. 15 In March 2011, the Arkansas General Assembly effectively overturned Essex when it enacted A.C.A which provides: (a) A commercial general liability insurance policy offered for sale in this state shall contain a definition of occurrence that includes: (1) Accidents, including continuous or repeated exposure to substantially the same general harmful conditions; and (2) Property damage or bodily injury resulting from faulty workmanship. (b) This section is not intended to restrict or limit the nature or types of exclusions from coverage that an insurer may include in a commercial general liability insurance policy. While not specifically referenced in the statute, A.C.A was passed in response to Essex and Lexicon. Like the preamble to the similar statutes in Hawaii and Colorado, the preamble to this statute criticizes courts for their holdings and states the legislature s belief that [i]nsurance consumers purchase commercial liability insurance for the express purpose of limiting their liability for faulty workmanship. 16 One major issued left unaddressed by the statute is whether it applies to policies that have already been issued. How this question is resolved may have Constitutional implications such has whether it violates Article I, Section 10 of the United States Constitution. 17 Importantly, the statute does not limit the types of exclusions which may be a part of a CGL policy. Like the other statues discussed here, the insurer s duty to defend claims of defective workmanship will more likely be triggered under this statute, however any exclusion that would ultimately bar indemnity coverage for such a claim is not affected. SOUTH CAROLINA In 2005 the South Carolina Supreme Court held in the L-J case that faulty workmanship that damages only the work itself does not constitute an occurrence under a CGL policy. 18 In 2009, the court issued 15 Lexicon, Inc. v. ACE Am. Ins. Co., 634 F.3d 423, 427 (8th Cir. 2011). 16 Acts of 2011, Act 604, 2, eff. July 27, See Fn L-J, Inc. v. Bituminous Fire & Marine Ins. Co., 366 S.C. 117, 621 S.E.2d 33 (2005) 5

6 its opinion in the Neuman case which affirmed L-J but held that faulty workmanship which damages other work does constitute an occurrence under a CGL policy. 19 Then on January 7, 2011, the Supreme Court issued its decision in Crossman I, and held that faulty workmanship cannot be an occurrence under a CGL policy, expressly overruling Newman. 20 In direct response to decision, the South Carolina General Assembly passed S.C. Code Ann which went into effect on May 17, 2011 and provides in pertinent part: (B) Commercial general liability insurance policies shall contain or be deemed to contain a definition of occurrence that includes: (1) an accident, including continuous or repeated exposure to substantially the same general harmful conditions; and (2) property damage or bodily injury resulting from faulty workmanship, exclusive of the faulty workmanship itself. (C) This section is not intended to restrict or limit the nature or types of exclusions from coverage that an insurer, including a surplus lines insurer, may include in a commercial general liability insurance policy. While S.C. Code Ann was being enacted, the South Carolina Supreme Court held a rehearing in Crossman I. On August 22, 2011, the Court issued Crossman II, which reversed its holding in Crossman I and reaffirmed its holding in Newman. 21 Interestingly, the Crossman II decision stated that [i]n disposing of this appeal, we elect to adhere to our precedent in Newman. We do not address recent legislation that seeks in part to impose a construction on existing insurance policies in pending actions. 22 The Court s reluctance to address S.C. Code Ann may be due to the fact that on May 23, 2011, the insurer who was a party to the Crossman decisions filed a lawsuit in the South Carolina Supreme Court seeking to have S.C. Code Ann invalided on the basis that it violates the 19 Auto Owners Ins. Co., Inc. v. Newman, 385 S.C. 187, 684 S.E.2d 541 (2009) 20 Crossmann Communities of N. Carolina, Inc. v. Harleysville Mut. Ins. Co., 26909, -- S.E.2d --, 2011 WL (S.C. Aug. 22, 2011) 21 Crossmann Communities of N. Carolina, Inc. v. Harleysville Mut. Ins. Co., 26909, -- S.E.2d --, 2011 WL (S.C. Aug. 22, 2011) 22 Id. at Fn. 6. 6

7 constitutions of the United States and South Carolina. That case remains pending before the South Carolina Supreme Court. 23 While statute appears to track the South Carolina Supreme Court s holding in L-J, because of the challenge to the lawsuit, the effect of S.C. Code Ann on the law of South Carolina is unclear at this time. Conclusion While states intent in passing these statutes was to provide some level of certainty regarding the definition of occurrence in a CGL policy, they may have only succeeded in spawning more litigation. Given the statutes lack of clarity and current legal challenges to the statutes, they could change at any time. 23 See Fn. 8. 7

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